LUIS GUTIERREZ-ROSTRAN, Petitioner, LORETTA E. LYNCH, Attorney General of the United States, Respondent. PETITION FOR A WRIT OF CERTIORARI. No.

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1 No. In the Supreme Court of the United States LUIS GUTIERREZ-ROSTRAN, Petitioner, v. LORETTA E. LYNCH, Attorney General of the United States, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR A WRIT OF CERTIORARI Abigail L. Seif Counsel of Record James A. Tanford Epstein Cohen Seif & Porter 50 S. Meridian St. #505 Indianapolis, IN (317) abbyhur@aol.com

2 i QUESTION PRESENTED Whether a Court of Appeals has jurisdiction to hear a claim that the Board of Immigration Appeals erred in its interpretation of the law concerning the filing deadlines for asylum in 8 U.S.C (a)(2)(d).

3 ii PARTIES TO THE PROCEEDINGS The Petitioner, who was petitioner below, is Luis Gutierrez-Rostran. The Respondent, who was the respondent below, is Loretta E. Lynch, Attorney General for the United States. There are no corporate parties.

4 iii TABLE OF CONTENTS Question Presented i Parties to the Proceedings ii Table of Contents iii Table of Authorities v Opinions and Orders Below Jurisdiction Statutory Provisions Involved Statement of the Case REASONS FOR GRANTING THE PETITION Whether the Circuit Courts have jurisdiction to review a decision by the Board of Immigration Appeals concerning the late filing of an asylum claim is an important federal question concerning the REAL ID Act that should be decided by this Court The Circuit Courts are divided on whether they have jurisdiction to review the Agency s refusal to hear a belated asylum application Conclusion APPENDIX a A. Opinion for which review is sought a B. Decision of the Board of Immigration Appeals a

5 iv C. Decision of the Immigration Judge a D. Statutes involved a 8 U.S.C a 8 U.S.C a

6 v TABLE OF AUTHORITIES CASES Aimin Yang v. Holder 760 F.3d 660 (7th Cir. 2014) ,6, 10, 11 Dada v. Mukasey 554 U.S. 1 (2008) Fakhry v. Mukasey 524 F.3d 1057 (9th Cir. 2008) Gomis v. Holder 571 F.3d 353 (4th Cir. 2009) INS v. St. Cyr 533 U.S. 289 (2001) , 8 Jean-Pierre v. United States AG 500 F.3d 1315 (11th Cir. 2007) Khozhaynova v. Holder 641 F.3d 187 (6th Cir. 2011) Kucana v. Holder 558 U.S. 233 (2010) Leguizamo-Medina v. Gonzales 493 F.3d 722 (7th Cir. 2007) Mandebvu v. Holder 755 F.3d 417 (6th Cir. 2014)

7 vi Paez Restrepo v. Holder 610 F.3d 962 (7th Cir. 2010) ,11, 12 Ramandan v. Gonzales 479 F.3d 646 (9th Cir. 2007) , 9 Vahora v. Holder 641 F.3d 1038 (9th Cir. 2011) Viracacha v. Mukasey 518 F.3d 511 (7th Cir. 2008) CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS U.S. Const., Art. I, U.S.C passim 8 U.S.C passim INA 212(a)(6)(A)(I)

8 1 OPINIONS AND ORDERS BELOW 1. The decision of the Seventh Circuit dismissing the appeal, which is the subject of this petition, is reported at 810 F.3d 497 (7th Cir. 2016). See App. 1a- 8a. 2. The underlying decision of the Board of Immigration Appeals is unreported. See App. 9a-11a. 3. The original decision of the Immigration Judge denying asylum is unreported. See App. 12a-28a. JURISDICTION The final decision by the Seventh Circuit dismissing the appeal was entered on January 13, This Court has jurisdiction pursuant to 28 U.S.C. 1254(1). This is an immigration matter originally heard by the Executive Office of Immigration Review, pursuant to 8 U.S.C. 1229(a) and 8 C.F.R

9 2 STATUTORY PROVISIONS INVOLVED U.S.C (a)(1) provides: Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title U.S.C. 1158(a)(2)(B) provides: Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States U.S.C. 1158(a)(2)(D) provides: An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant s eligibility for asylum or extraordinary circumstances 1 The statutes in their entirety are reprinted in the Appendix. See App 29a-53a.

10 3 relating to the delay in filing an application within the period specified in subparagraph (B) 4. 8 U.S.C. 1252(a)(2)(D) provides: Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. STATEMENT OF THE CASE The Seventh Circuit had proper jurisdiction to hear Mr. Gutierrez s appeal of the Agency s denial of his asylum claim pursuant to 8 U.S.C. 1252(a)(2)(D) because he was raising a question of law, but the Court of Appeals held to the contrary and that is the subject of this petition for certiorari. On November 15, 2010, the Department of Homeland Security issued Mr. Gutierrez a Notice to Appear alleging that he was a citizen of Nicaragua who entered the United States without being admitted or paroled by an Immigration Officer in violation of INA 212(a)(6)(A)(i). On April 30, 2013, Mr. Gutierrez, through counsel, admitted the allegations and conceded the charge of removability. On June 12, 2013, he filed an application for Asylum, Withholding of Removal and

11 protection under the Convention Against Torture. 4 A merits hearing was held on June 12, 2013 (the same day he filed his application). On November 6, 2013, the Immigration Judge ( IJ ) issued a decision denying all forms of relief and ordering that Mr. Gutierrez be removed to Nicaragua. App. 12a-28a. Mr. Gutierrez timely appealed the decision of the IJ to the Board of Immigration Appeals ( BIA ). On May 14, 2015 the BIA adopted and affirmed the decision of the IJ with comment. App. 9a-11a. Mr. Gutierrez appealed the decision of the BIA to the Seventh Circuit Court of Appeals. Petitioner argued that the Agency had committed a legal error in failing to review the merits of his asylum claim in making its decision as to whether Mr. Gutierrez had proven that conditions had changed in Nicaragua that affected his eligibility for asylum. The Agency conceded in its brief and at oral argument that the IJ and the BIA never considered the merits of the asylum claim. Therefore, all of the factual issues regarding his eligibility to file a late asylum claim had been conceded. All that remained was the legal question of whether the Agency had erred in failing to review the underlying asylum claim in determining if changed country conditions materially affected his asylum claim allowing for the late filing. On January 13, 2016 the Seventh Circuit Court of Appeals issued a decision dismissing the appeal on the grounds that it did not have jurisdiction to review his claim that he should have been allowed to file a belated petition for asylum. It held that he had not raised a pure question of law and issues of changed or extraordinary circumstances are mixed questions of

12 5 law and fact that lie outside the realm of 1252(a)(2)(D) s grant of jurisdiction, citing Aimin Yang v. Holder, 760 F.3d 660, 665 (7th Cir. 2014). App. 2a. 2 REASONS FOR GRANTING THE WRIT 1. Whether the Circuit Courts have jurisdiction to review a decision by the Board of Immigration Appeals concerning the late filing of an asylum claim, is an important federal question concerning the REAL ID Act that should be decided by this court. In the case below the facts were undisputed, and the only question was one of law. The government conceded in its brief and at oral argument that when the Agency reviewed whether Mr. Gutierrez had met the legal standard allowing for the late filing of his asylum claim, it never considered the merits of his asylum claim. Respondent s brief at 14-16, Dkt. #26. The Agency never determined if at any point in time Mr. Gutierrez had a well founded fear of persecution. When he tried to appeal the Agency s misapplication of this law, the Seventh Circuit ruled that it did not have jurisdiction to review it because 8 U.S.C. 2 The Seventh Circuit also decided that the BIA had not adequately justified denying Withholding of Removal and remanded that issue to the BIA, which matter is not at issue in this petition.

13 6 1252(a)(2)(D) limits jurisdiction to pure questions of law, and whether an increased risk of violence in Nicaragua constituted changed circumstances that allow for a belated asylum application was a mixed question of law and fact. App. 2a (citing Aimin Yang v. Holder, 760 F.3d 660, 665 (7th Cir. 2014). 3 Petitions for asylum must be filed within one year of an alien s arrival in the U.S. unless the applicant can show to the satisfaction of the Attorney General the existence of changed circumstances which materially affect the alien s eligibility for asylum. 8 U.S.C. 1158(a)(2)(D). Among other things, in order to prove eligibility for asylum an alien must prove that he or she has a well founded fear of persecution if returned to the alien s home country. Mr. Gutierrez s application claiming changed circumstances was denied by the Agency before it ever considered the merits of his claim that he had a well founded fear of persecution. He sought to appeal that decision to the Seventh Circuit. The issue of if and when an alien can file a late asylum claim is critically important to asylum seekers. In a volatile world, conditions change constantly. An alien who has been residing in the U.S. for more than a year may suddenly find it impossible to return home because of a regime change or the rise 3 In Yang the Seventh Circuit held that the decision as to whether an alien has established an exception allowing for the late filing of an asylum claim to be purely factual and the conclusion never reviewable. 760 F.3d at 665.

14 7 in terrorism. He or she could not have applied for asylum earlier because home conditions were benign, and may be barred from doing so now because asylum applications must be filed within one year of entry into the United States. 8 U.S.C. 1158(a)(2)(B). In these cases, whether the alien has proved a change of circumstances that materially affect his eligibility for asylum is therefore the most significant decision in the asylum process. Whether one of the most significant decisions made by the Agency in an asylum petition can be reviewed by a circuit court is therefore an important federal question. 8 U.S.C. 1252(a)(2)(D) was enacted to resolve this issue, but it has not been uniformly interpreted by the appellate courts. This section was enacted as part of the REAL ID Act of 2005 in response to this Court s holding in INS v. St. Cyr, 533 U.S. 289 (2001). In St. Cyr the Supreme Court found jurisdiction stripping language in immigration statutes unconstitutional, holding that to completely remove the appellate court s jurisdiction to review Agency removal decisions would amount to a suspension of habeas corpus in violation of U.S. Const., Art. I, U.S. at The REAL ID Act gave back to the federal courts the jurisdiction to review questions of law and constitutional questions. 8 U.S.C. 1252(a)(2)(D). However, the appellate courts have found it difficult to determine whether this statute gives them jurisdiction to review the Agency s conclusion that a petitioner has not established changed circumstances when the appellant claims that the Agency misconstrued or erroneously interpreted 8 U.S.C (a)(2)(d), or misapplied it

15 to uncontested facts. 8 The Seventh Circuit read the jurisdictional statute narrowly and refused to hear Mr. Gutierrez s potentially valid appeal. This decision is inconsistent with this Court s prior decisions in three ways: 1) This Court has a long standing principle of construing any... ambiguities in deportation statutes in favor of the alien. Dada v. Mukasey, 554 U.S. 1, 19 (2008). The Seventh Circuit did not construe section 1252(a)(2)(D) in favor of the alien, but construed it against him. App. 2a. 2) This Court held in INS v. St. Cyr, 533 U.S. at 298, and Kucana v. Holder 558 U.S. 233, 235 (2010) that there is a strong presumption that agency decisions are reviewable and cannot be shielded from review by calling them discretionary. The Seventh Circuit did the opposite, characterizing the Agency s failure to consider Mr. Gutierrez s claim that a change of circumstances materially affected his eligibility for asylum as a discretionary question of fact and holding that it was unreviewable. App. 2a. 3) This Court said in INS v. St. Cyr that whether undisputed facts meet the legal standard for deportability is a reviewable question of law. 533 U.S. at 298. The Seventh Circuit held to the contrary, that whether the undisputed facts meet the legal standard of changed conditions is a non-reviewable question of fact. App. 2a. The question of when an appellate court has jurisdiction to review an error in an Agency decision concerning the late filing of an asylum claim has caused turmoil for immigrants, agency staff and courts for over a decade. See, e.g., Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir 2007). It is an issue that can result in the United States deporting a

16 9 person to a country were they can be persecuted or killed. With the large increase in asylum filings over the last several years, it is a question that will continue to cause disorder in the adjudication of these cases for years to come unless this Court clarifies the interpretation of the statute. Mr. Gutierrez s appeal presented a straightforward question of statutory interpretation which he was entitled to have reviewed. However, the Seventh Circuit refused to hear the case because of its steadfast stance that it will not review any issue relating to the late filing of an asylum claim. Therefore, this is an important federal issue and it is time for the United States Supreme Court to answer this question. 2. The Circuit Courts are divided on whether they have jurisdiction to review the Agency s refusal to hear a belated asylum application. The Circuit Courts are split regarding their jurisdiction to review an error made by the Agency in its determination of whether an alien has proved that he is legally entitled to file a claim for asylum more than one year after entering the United States. The Ninth, Sixth and Eleventh Circuits have held that the courts of appeals have jurisdiction. The Ninth Circuit in Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir 2007), held that our jurisdiction over questions of law as defined by the REAL ID Act includes not only pure issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed

17 10 questions of law and fact. Accord Fakhry v. Mukasey 524 F.3d 1057 (9th Cir. 2008); Vahora v. Holder, 641 F.3d 1038 (9th Cir 2011). The Sixth Circuit in Mandebvu v. Holder 755 F.3d 417, (6th Cir. 2014) held that we retain our jurisdiction to review applications that were denied for untimeliness if the appeal does not require this court to revisit the evidence submitted in support of their claim, but only asks if the IJ correctly applied the facts to the legal standard of changed circumstances. Accord Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir. 2011). The Eleventh Circuit in Jean-Pierre v. United States AG, 500 F.3d 1315, 1322 (11th Cir. 2007), also ruled that it had jurisdiction, stating that we have jurisdiction to review Jean Pierre's claim in so far as he challenges the application of an undisputed fact pattern to a legal standard. The Seventh and Fourth Circuits have held to the contrary. In Aimin Yang v. Holder, 760 F.3d 660, 665 (7th Cir. 2014), the Seventh Circuit held that the REAL ID Act supplies jurisdiction for review of constitutional claims and questions of law [but we] have held that the issues of changed or extraordinary circumstances are questions of fact that lie outside the realm of 1252(a)(2)(D). It has steadfastly refused to accept jurisdiction in even one case involving an exception to the one-year rule. See Paez Restrepo v. Holder, 610 F.3d 962 (7th Cir. 2010); Viracacha v. Mukasey, 518 F.3d 511, 514 (7th Cir. 2008); Leguizamo-Medina v. Gonzales, 493 F.3d 772 (7th Cir. 2007). The Fourth Circuit has held flatly that we lack jurisdiction to review the immigration judge's determination that there have been no changed

18 11 circumstances excusing a delay in filing. Gomis v. Holder, 571 F.3d 353, 358 (4th Cir. 2009). The Circuits acknowledge the split, but cling to their separate interpretations. We are aware that some circuits have concluded that these issues are reviewable mixed questions of law and fact, [b]ut others agree with us. We are not inclined to change our approach and thus conclude that we have no jurisdiction to address Yang's arguments based on changed or extraordinary circumstances. Yang, 760 F.3d at 665 (citations omitted). See also Paez Restrepo v. Holder, 610 F.3d 962, 965 (7th Cir. 2010) ( we shall [not switch sides] unless the statute is amended or the Supreme Court approves the Ninth Circuit's position ). Therefore, this split is not likely to be resolved without the intervention of the United States Supreme Court. The statutes involved -- 8 U.S.C (a)(2)(d) and 8 U.S.C. 1252(a)(2)(D) -- are federal laws that concern inherently national claims that require uniform interpretation across our country. Had Mr. Gutierrez filed his asylum petition in California, the Ninth Circuit would have reviewed the Agency s failure to consider the merits of the underlying asylum claim. But because he lived in Indiana, his appeal went to the Seventh Circuit, which declined to hear the appeal. This arbitrariness is unacceptable and the circuit split needs to be addressed by this Court.

19 12 CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. April, 2016 Respectfully submitted: Abigail L. Seif Counsel of Record Epstein Cohen Seif & Porter 50 S. Meridian St., Suite 505 Indianapolis, IN Tel: abbyhur@aol.com James A. Tanford, of counsel Epstein Cohen Seif & Porter 50 S. Meridian St., Suite 505 Indianapolis, IN Tel: tanfordlegal@gmail.com

20 1a APPENDIX A Opinion for which review is sought UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No January 13, 2016 LUIS GUTIERREZ-ROSTRAN, Petitioner, v. LORETTA E. LYNCH, Attorney General of the United States, Respondent. Petition for Review of an Order of the Board of Immigration Appeals. No. A Before BAUER, POSNER, and HAMILTON, Circuit Judges. POSNER, Circuit Judge. The petitioner, Luis Gutierrez-Rostran, a Nicaraguan citizen, entered the United States illegally in 2006, and decided to stay. Although his stated motive for immigrating was fear that the government of Nicaragua would encourage or condone his being murdered by its supporters because of his and his family's political views, he did not make a timely application for asylum. See 8 U.S.C. 1158(a)(2)(B). In 2010 he was convicted of public intoxication and driving under the influence. After eight days in jail he was issued a Notice to Appear for immigration

21 2a proceedings and released on bail the same day. Eventually he was ordered to be removed to Nicaragua. He then applied for asylum under 8 U.S.C. 1158, and for withholding of removal under 8 U.S.C. 1231(b)(3)(A) (formerly 8 U.S.C. 1253(h)(1)(1990)) in the alternative. To obtain the second form of relief he had to show that his "life or freedom would be threatened in [Nicaragua] because of [his] race, religion, nationality, membership in a particular social group, or political opinion." The immigration court turned him down and the Board of Immigration Appeals affirmed, precipitating the petition for review that brings his case to us. He challenges both the denial of his untimely asylum application and the denial of his claim for withholding of removal. Regarding the former challenge, to prevail given the untimeliness of the application he would have to show that the immigration court or the Board had committed a legal error, 8 U.S.C. 1252(a)(2)(D); Restrepo v. Holder, 610 F.3d 962, (7th Cir. 2010), and he hasn't done that. He argues only that violence toward persons such as him has increased in Nicaragua in recent years, thus justifying his belated application. But unfortunately for him "issues of changed or extraordinary circumstances are questions of fact that lie outside the realm of 1252(a)(2)(D)." Aimin Yang v. Holder, 760 F.3d 660, 665 (7th Cir. 2014). So we turn to his claim for withholding of removal, and begin by sketching some essential background. Augusto César Sandino was a Nicaraguan revolutionary who between 1927 and 1933 conducted a rebellion against the U.S. military occupation of

22 3a Nicaragua. He was assassinated in 1934 at the direction of Anastasio Somoza Garcia, who became the nation's ruler, succeeded by his sons after he was assassinated. The Sandinista party, named in memory of Sandino, rose up against the Somozas, and under the leadership of Daniel Ortega wrested control of the country from them. That happened in 1979 and Ortega ruled the country as a dictator until He then permitted free elections, was repeatedly defeated, and did not achieve his old authority until he won (though with only a plurality of the votes) the presidential election held in Since then his power has been secure. Ortega's defeats in that interim period were by the Liberal Constitutionalist Party (known as PLC from the initials of its Spanish name), then the main opposition party, and parties allied to it, notably the Independent Liberal Party (the PLI). Gutierrez- Rostran was active in one of those two parties (though it's unclear which one), as were his father, his two brothers, and two uncles, one of them a mayor and the other a PLC representative who, Gutierrez-Rostran testified, "was to become a mayor as well." Because of the family's intimate connections with a political movement that had long delayed Ortega's return to power, both Gutierrez-Rostran and his two brothers fled the country when Ortega was elected president in 2006, though the brothers fled not to the United States but to Costa Rica and Guatemala, respectively, and since fleeing have (for a reason we'll explain shortly) been able to make extended visits to Nicaragua without being threatened or harassed.

23 4a In his hearing before the immigration court on his application for withholding of removal, Gutierrez- Rostran testified that his family and members of the PLI had told him that both his cousin and his friend had been murdered by the Sandinistas--in fact by the son of one of President Ortega's bodyguards. Another friend of Gutierrez-Rostran, Rogelio Ruiz-Sotelo, testified that the cousin had received threats from Sandinistas, and though in response to the threats he had moved to a far-off city in Nicaragua he nevertheless was murdered there. Ruiz-Sotelo further testified that he'd attended the cousin's funeral and heard things in the city that convinced him that the murderer was a Sandinista. (That testimony was hearsay, but hearsay is admissible in immigration proceedings. N.L.A. v. Holder, 744 F.3d 425, 436 (7th Cir. 2014).) He also testified that, while a poll worker in an election held in 2012, he had been stoned by Sandinistas and forced to surrender his ballots to them, and that he had complained to the authorities but both the captain of police and the town's mayor were Sandinistas and threatened to kill him if he said anything about the attack against him. (On the collaboration of Nicaraguan police in Sandinista violence against political opponents, see, e.g., Tim Rogers, "6 Dead in Post-Election Violence," Nicaragua Dispatch, November9,2011, com/2011/11/6-dead-in-post-election-violence/.) The immigration judge who presided at Gutierrez- Rostran's hearing denied withholding of removal on the ground that none of his immediate family members had been harmed or even threatened, and that the various articles and reports he submitted

24 5a about political violence between Sandinistas and members of the opposition parties fell short of proving that it was more likely than not that he would be persecuted if he returned to Nicaragua. The Board affirmed the denial, discounting as "speculative" the contention that the cousin's murder had been "at the hands of the Sandinistas." The treatment by the immigration court and the Board of the cousin's murder was too cursory to justify denial of Gutierrez-Rostran's application for withholding of removal. There was evidence of violence by Sandinistas against liberal party members; the cousin was a liberal from a well-known liberal family; and Gutierrez-Rostran's testimony, Ruiz-Sotelo's testimony (including his testimony that public officials--a mayor and a police chief--had refused to protect him against Sandinista harassment), and letters of Gutierrez-Rostran's parents and of PLI officials, made a prima facie showing that Gutierrez-Rostran would be in great danger were he to be returned to Nicaragua while the Sandinistas are in power. Although Gutierrez- Rostran's parents, brothers, sisters, and uncles have not been persecuted, the parents are old (his father is 78) and neither they nor his one surviving uncle nor the sisters nor the brothers who, remember, no longer live in Nicaragua--are politically active. An uncle of Gutierrez-Rostran who had been a liberal mayor was allowed to die in peace, but he too was old. Neither the immigration judge nor the (as usual) single-member "panel" of the Board of Immigration Appeals gave a reason for doubting the weight or truthfulness of the evidence, evidence from which an

25 6a inference could be drawn that Gutierrez-Rostran would indeed face a grave threat of suffering his cousin's fate were he forced to return to Nicaragua. Admissible, pertinent, credible evidence can't just be ignored, as the immigration court and the Board did in this case; reasonable grounds must exist, and be articulated, to justify rejection of such evidence. See, e.g., Lian v. Ashcroft, 379 F.3d 457, (7th Cir. 2004). The immigration judge stated in his opinion, and the Board registered no disagreement, that Gutierrez-Rostran's testimony was "internally consistent, consistent with his written statement, and consistent with the other documents he submitted." The immigration judge also made no adverse credibility finding with regard to Ruiz-Sotelo. Yet having indicated that he thought Gutierrez-Rostran's testimony had been credible and not having suggested that Ruiz-Sotelo's evidence was not credible, the immigration judge contradicted himself by saying that "there is no evidence to corroborate the respondent's belief that [his cousin and friend] were killed by the Sandinista youth for their political beliefs." Ruiz- Sotelo had testified without contradiction that Sandinistas had threatened and then killed the cousin and friend, and why would Sandinistas have killed them other than for political reasons? Against all this it can be argued that while the evidence indicates danger to Gutierrez-Rostran if he is returned to Nicaragua, it does not indicate that he is "more likely than not" to be persecuted if he is sent there, which the Supreme Court in INS v. Stevic, 467 U.S. 407, , 104 S. Ct. 2489, 81 L. Ed. 2d 321 (1984), held is the standard of proof for withholding of

26 7a removal. See also 8 C.F.R (b)(2); Torres v. Mukasey, 551 F.3d 616, 625 (7th Cir. 2008). That of course is the normal civil standard of proof. But it can't be taken literally in the immigration context. In an ordinary civil case there are witnesses, lay and/or expert, on both sides of the case, and likewise documentary evidence. But in the usual withholdingof-removal case, including this case, the only evidence is presented by the alien--and the immigration judge appears to have deemed that evidence credible. What is missing in a case like this are data that would enable a rational determination of whether there was a greater than 50 percent probability that the alien would lose his life or his freedom if removed to his country of origin. Rodriguez-Molinero v. Lynch, No , 2015 U.S. App. LEXIS 21977, 2015 WL , at *1 (7th Cir. Dec. 17, 2015). The first step in such an inquiry would be to define the endangered group (obviously not all the Nicaraguans who voted for PLC or PLI candidates) and the second to determine what percentage of them have lost their life or freedom at the hands of the Sandinistas, and also whether that percentage is growing or declining (or not changing). The immigrant is required to present evidence that he faces a significant probability of persecution if he is removed to his country of origin, and Gutierrez-Rostran did present such evidence, as we have seen. He could not be expected to quantify the probability of his being persecuted or killed should he be removed to Nicaragua. The data that would enable such quantification appear not to exist, because to be reliable they would have to specify all persons who had characteristics similar to those of the applicant

27 8a for withholding of removal and how many of them had been killed or persecuted because of those characteristics. If such data do exist somewhere, the immigration authorities or the State Department may have access to them, but there is no indication of that. The immigration judge may have been acknowledging the difficulty of taking the "more likely than not" standard literally as a 50+ percent probability when he said that an alien seeking withholding of removal could satisfy the standard of proof by demonstrating a "reasonable probability" of persecution if removed to his country of origin. That description of the standard is a step in the right direction. The denial of withholding of removal and the affirmance of that denial by the BIA member who as the (entire) appeal "panel" denied the petitioner's appeal were not adequately reasoned and so must be set aside and the case returned to the Board for further proceedings consistent with this opinion. The petition for asylum is dismissed, however, as noted earlier in this opinion.

28 9a APPENDIX B Decision of the Board of Immigration Appeals U.S. Department of Justice Executive Office of Immigration Review Decision of the Board of Immigration Appeals File: A Chicago, IL Date: May 14, 2015 In re: LUIS GUTIERREZ-ROSTRAN a.k.a. Luis Gutierrez IN REMOVAL PROCEEDINGS CHARGE: Sec.212(a)(6)(A)(I), I&N Act [8 U.S.C. 1182(a)(6)(A)(I)] - Present without being admitted or paroled. APPLICATION: Asylum; withholding of removal; Convention Against Torture; voluntary departure APPEAL The respondent, a native and citizen of Nicaragua, has appealed from the decision of the Immigration Judge dated June 12, 2013, denying his applications for asylum, withholding of removal, protection under the Convention Against Torture ("CAT"), and voluntary departure. See sections 208(b)(l )(A), 24 l(b)(3)(a), and 240B(b) of the Immigration and Nationality Act, 8 U.S.C. 115a(b)(l)(A), 1231(b) (3)(A), and 1229c(b); 8 C.F.R and The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be dismissed.

29 10a We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R l(d)(3)(I). We review de novo all other issues, including whether the parties have met the relevant burden of proof and issues of discretion. 8 C.F.R l(d)(3)(ii). The respondent's asylum application was filed on June 12, 2013, and is governed by the REAL ID Act (Exh. 2; I.J. at 2, 6). See Matter of S.B., 24 I&N Dec. 42, 43 (BIA 2006). We adopt and affirm the decision of the Immigration Judge. See Matter of Burbano, 20 l&n Dec. 872, 874 (BIA 1994). The respondent's asylum application, filed more than 6 years after his arrival in the United States, was untimely, and he did not establish an exception to the filing deadline. Sections 208(a)(2)(B) and (D) of the Act; 8 U.S.C (a)(4). The respondent did not show "changed circumstances which materially affect [his] eligibility for asylum" (1.J. at 7-8). The claim that the murder of the respondent's cousin in January 2013 was at the hands of the Sandinistas and was politically motivated is speculative (I.J. at 7; Tr. at 36-39, 52-54, 62, 97, 108). Additionally, the respondent has not shown that the increased political power of the Sandinista National Liberation Front ("FSLN") is material to his claim where he was not harmed or personally threatened on account of his political activities, and his brothers, also supporters of the liberal party, have been able to return to Nicaragua for visits without incident. With respect to the respondent's applications for withholding of removal and protection under the CAT, we agree with the Immigration Judge, for the reasons

30 11a stated in his decision, that the respondent did not meet the heavy burden of establishing that he will more likely than not be persecuted or that he will more likely than not be tortured following his return to Nicaragua (I.J. at 8-9). See 8 C.F.R (b)(2), (c)(2) and (3), and (a). Upon our de novo review, we agree with the Immigration Judge that the respondent does not merit a favorable exercise of discretion with respect to his application for voluntary departure. Although the respondent's residence in the United States of 8 years and family ties are favorable factors, they do not outweigh the respondent's repeated disregard for the law by driving without a license and, on one occasion, driving while intoxicated. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed s/ Hugh G. Mullane FOR THE BOARD

31 12a APPENDIX C Decision of the Immigration Judge United States Department of Justice Executive Office for Immigration Review Immigration Court Chicago, Illinois File #: A l7 Date: November 6, 2013 In the Matter of ) Luis GUTIERREZ-ROSTRAN, ) Respondent. ) IN REMOVAL PROCEEDINGS CHARGE: Section 212(a)(6)(A)(I) of the Immigration and Nationality Act ("INA" or "Act") - Present without being admitted or paroled APPLICATIONS : INA 208 -Asylum; INA 241(b)(3)-Withholding of Removal; 8 C.F.R Protection under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture" or "CAT") DECISION OF THE IMMIGRATION JUDGE I. BACKGROUND The respondent is a 27-year-old male native and citizen of Nicaragua. He entered the United States without inspection at an unknown date, at or near Reynosa, Texas. On November 15, 2010, the Depart-

32 13a ment of Homeland Security issued a Notice to Appear (''NTA") alleging that the respondent was a native and citizen of Nicaragua who entered the United States without being admitted or paroled after inspection by an Immigration Officer. Exh. 1. The NTA charged him with removability under INA 212(a)(6)(A)(I) for being present in the United States without having been admitted or paroled. At a hearing on April 30, 2013, the respondent, through counsel, admitted the allegations and conceded the charge of removability contained on the NTA. He declined to designate a country of removal so the court designated Nicaragua, the country of citizenship. See 241(b)(2)(D). On June 12, 2013, the respondent filed an application for asylum, withholding of removal, and protection under CAT. Exh. 2. I held a merits hearing on the respondent's application for relief on that date. II. CLAIM AND EVIDENCE PRESENTED The respondent claims that he is eligible for asylum, withholding of removal, and protection under CAT because he fears persecution and torture in Nicaragua on account of his political opinion and membership in a well-known politically-active family. On June 12, 2013, I heard testimony from the respondent and another witness. Their testimony is summarized as follows: A. Testimony 1. Respondent 's testimony The respondent, Luis Gutierrez-Rostran, was born

33 14a in Nicaragua and lived in Matiguas until he left for the United States. His parents both live in Nicaragua and he has four siblings. He left for the United States in 2006 and traveled through El Salvador, Guatemala, and Mexico to reach the U.S. The trip took about 15 days. He was not offered any permanent status in the countries he traveled through. He testified that he did not seek asylum in those countries because he did not like Central America and he wanted to come to the U.S. The respondent left Nicaragua because the Sandinista National Liberation Front won the election in November 2006.The respondent is a member of the Partido Liberal Indepemdiente ("PLI"), the liberal party. The PLI was formerly a part of the Partido Liberal Constitucionalista ("PLC"). The PLI opposed the Sandinistas and was in power until 2006, when Daniel Ortega and the Sandinistas won the election. As a member of the liberal party, the respondent worked to organize the liberal youth before the 2006 election. During the election, he oversaw a voting location and was in charge of the people that took in the votes. Each party had representatives at the voting location. When the Sandinistas won the election, the respondent fled because he feared violence from the Sandinistas. He did not personally experience any violence but he was scared that the Sandinistas would kill him. The respondent's two brothers, Francisco Gutierrez and Rafael Amador, also left the country, going to Costa Rica and Guatemala. His brothers also feared the Sandinistas would target them because they are members of the liberal party. His two sisters

34 15a and 78-year-old father remain in Nicaragua. The respondent testified that the Sandinistas left his father alone because he was old. The respondent testified that he and his brothers were in danger because they were young and more active while his father was tired and did not take part in politics. The respondent testified that his family members are well known members of the liberal party. His uncle Guillermo Gutierrez was a member of the liberal party and be was mayor of Matiguas as recently as His uncle died of cancer at some point after the respondent fled to the U.S. He did not know the exact date, but believed he died sometime in The respondent also has an uncle named Modesto Gutierrez who was a high-profile member of the PLC. The respondent testified that the Sandinista youth became very violent after the 2006 elections. The violence began during the campaigns, got worse during the elections, and has continued to worsen since he left. He testified that there was a peaceful period sometime between the 2006 elections and the elections in 2011 and 2012,but after that, the violence got worse again. He heard about the situation in Nicaragua through the news and through his family. The Sandinista youth, the police, and the army interfere with liberal political gatherings and rallies and members of the liberal party have been hurt. In January 2013, the respondent' s cousin, who was also named Luis Gutierrez, was killed because he was a member of the liberal party. The respondent heard about his cousin's murder from other members

35 16a of his family: He testified that another member of the liberal party, a friend of his named Lesther Guzman, was shot to death by the Sandinistas because he was a member of the liberal party. The respondent worries that he will also be murdered or tortured by the Sandinista youth for being a liberal if he returns to Nicaragua. He believes this is a risk for all members of the liberal party and stated that he will continue to support the PLI if he returns. His fear of being killed or tortured extends to all regions of Nicaragua because he will support the PLI anywhere he goes, so the Sandinistas will find out his political affiliation wherever he goes. If he returns he plans to attend PLI political rallies and demonstrations, just as he did before he fled Nicaragua. On cross examination, he could not explain why he would be in greater danger now than when he was previously actively involved in politics in Nicaragua. The respondent testified that his brother Rafael recently returned to Nicaragua to visit their parents. He had no problems entering the country. He said Rafael is also seeking medical treatment in Nicaragua because he had been suffering from severe headaches in Guatemala. The respondent recently spoke to Rafael, who told him that he was feeling much better and that the news in Nicaragua was reporting that there was lots of violence in the country. His other brother, Francisco, also recently returned to Nicaragua to visit family. The respondent had not heard that his brother was having any problems with the authorities since returning but believes he is taking a risk by being in Nicaragua. The respondent'

36 17a s father has told him not to return to Nicaragua because there is a lot of violence there right now. He testified that no other members of his family have been threatened. The respondent could not explain why he did not file for asylum when he first arrived in the United States in When asked if he would have applied for asylum if he had not been detained by immigration officials after his arrest, he answered that he did not want to say no but that he also could not say yes. He stated that he felt he would have applied at some point because of his fear of returning now that the Sandinista have been elected again. On cross examination, the respondent stated that he had been arrested three times in the U.S. In 2010 he was stopped by the police while driving and arrested for possession of a false government ID. The possession charge was dismissed, but he was convicted of operating a vehicle without a license. Later that same year he was arrested for operating a vehicle while intoxicated and for public intoxication. He was found guilty on both charges. In 2011, he was again arrested for operating a vehicle without a license. When asked why he was operating a vehicle without a license while intoxicated, he responded that he did it because he was happy about the birth of his son. 2. Testimony of Rogelio Sotelo Rogelio Sotelo is a 21-year-old citizen of Nicaragua who lived in Matiguas, the same town as the respondent. He has been a liberal all his life and is a member of the PLI. He testified that the PLI was formerly known as the PLC. He left Nicaragua in 2013

37 for political reasons. 18a In Nicaragua, Sotelo was in charge of taking ballots to different towns for the election. He worked the ballot box in Matiguas in the November 2012 elections. He was on hi way to deliver the ballots but the road was blocked. When he stopped, people started throwing rocks at him and his car, and they threatened to kill him if he did not turn over the ballots. One of the rocks hit him in the forehead. He handed over the ballots because he was scared he would be killed if he refused. Sotelo returned home and tried to file a complaint the next day, but the chief police officer in his town was a Sandinista who also threatened to kill him. Sotelo told the police captain that he had been threatened the night before, on November 4. The captain told him not to go through with the complaint and that if he did pursue the complaint, he would call the mayor of the town, who was also a Sandinista, and that Sotelo would be killed. The following day, the mayor threatened Sotelo in person with a gun. The mayor told him that if he followed through with the complaint he would send some of his friends who were gang members to kill him. After the threats from the mayor, Sotelo was frightened, and moved from his town to the capital. But he continued to receive threats even after leaving for the capital, and so be fled to the United States. Soleto testified that other PLI members who carried the ballots and worked at the tables during the election were also threatened. PLI politicians also faced threats from the Sandinistas. He testified that

38 19a the majority of PLI members in Nicaragua are being threatened by the Sandinistas. Sotelo testified that the respondent's family members are liberals and members of the PLI. The respondent's uncle, Guillermo Gutierrez, was a liberal and the former mayor of their town. He testified that the respondent's cousin, whose name is also Luis Gutierrez, was killed about six months ago for being a liberal and because he was related to Mayor Gutierrez. Soleto stated that the Sandinistas had a grudge against the former mayor and the family as a whole. When asked how he knew Luis had been killed because he was a liberal, Sotelo said Luis had told him that he had been followed and threatened by the Sandinistas. After his death, the police arrested someone for the murder but he was later released. Sotelo did not know the name of the person arrested for the murder or why he was released, but he heard that he was a member of the Sandinista party. When asked to describe the respondent's activities with the PLI, Sotelo replied that, in 2006, the respondent walked around with his uncle Guillermo Gutierrez while he was campaigning. He also participated in the elections in 2006 by working at the election tables and helping to count ballots. He testified that the respondent will be killed if he returns to Nicaragua and that there is no place in Nicaragua where he would be safe. On cross examination, he conceded that while the respondent' s entire family are members of the PLI, aside from his cousin, nothing has happened to other members of the family. Even the respondent's uncle,

39 20a the former mayor, was not harmed by Sandinistas before he died even though he remained a PLI supporter. Sotelo could not explain why the Sandinistas would target younger members of the party but not a well- known PLI member and former mayor against whom they had a grudge. B. Documentary evidence In addition to the testimony, I have considered. the documents relevant to the respondent's claim, including: Exhibit 1: Notice to Appear; Exhibit 2: I-589 Application for Asylum, Withholding of Removal, and protection under CAT, filed with the Immigration Court on June 12, 2013, with supplemental documents including: Tab A: Respondent's affidavit; Tab B: Respondent's identity documents; Tab C: Additional affidavits and letters; Tab D: Country conditions evidence; Tab E: Additional country conditions evidence; Tab F: Respondent's criminal history records; Tab G: Documents issued by DHS; Tab H: Witness list; Exhibit 3: FBI RAP sheet.

40 21a III. FINDINGS AND ANALYSIS Having considered the respondent's testimony and the record in its entirety, I find the respondent credible. He is not eligible for relief, however, because his asylum application is untimely and his testimony, while credible, is nonetheless insufficient to meet his burden of proof for withholding of removal or relief under CAT. A. Credibility and Corroboration Because the respondent filed his applications for asylum, withholding of removal, and protection under CAT in 2013, the credibility and corroboration provisions of the REAL ID Act govern his applications. 4 The REAL ID Act requires, in the absence of documentary proof, that an Immigration Judge use the details of an alien's story to make an evaluation of its truth. Mitondo v. Mukasey, 523 F.3d 784, 789 (7th Cir. 2008). Under the terms of the REAL ID Act, the applicant's testimony is sufficient to sustain his burden of proof without corroboration "only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." INA 208(b)(l)(B)(ii). The court may evaluate the alien's credibility "using whatever combination of considerations seems best in the situation at hand."id The REAL ID Act 4 The REAL ID Act s credibility and corroboration provisions govern asylum applications made on or after <ay 1, INA 208(b)(1)(B), n

41 22a lists the following factors among those that may be considered in the assessment of an asylum applicant's credibility: demeanor, candor, responsiveness, inherent plausibility of the claim, the consistency between oral and written statements, the internal consistency of such statements, the consistency of such statements with evidence of record, and any inaccuracy or falsehood in such statements, whether or not such inaccuracy or falsehood goes to the heart of the applicant's claim. INA 208(b)(l)(B)(iii). Having reviewed the respondent's testimony and documentary submissions, I find the respondent credible. His testimony is internally consistent, consistent with his written statement, and consistent with the other documents he submitted. B. Asylum 1. One-Year Bar Section 208(a)(2)(B) of the Act provides that an alien may not apply for asylum unless he or she demonstrates by clear and convincing evidence that the application was filed within one year after the date of the alien's arrival in the United States. An alien may apply for asylum beyond the one-year deadline only if he demonstrates to the satisfaction of the court either (1) the existence of changed circumstances which materially affect the applicant's eligibility for asylum, or (2) extraordinary circumstances relating to the delay in filing an application for asylum more than one year after arriving in the United States. See INA 208(a)(2)(D). In this case, the respondent did not apply for